South African Police Service v Dube and Another (J2890/13) [2021] ZALCJHB 359; (2021) 42 ILJ 2681 (LC) (12 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Of interest to other Judges

Case No: J 2890/13

In the matter between:

SOUTH AFRICAN POLICE SERVICE Applicant

and

CHRISTIAN BAFANA DUBE First

Respondent

MALISELA DANIEL TEFFO Second

Respondent

Heard: 30 September 2021 and 8 October 2021 (Virtual hearing)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 12 October 2021 at 10:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] Following an urgent application brought by the applicant (SAPS), this Court had on 30 September 2021 issued an order in the following terms;

‘1. Each of the First Respondent and the Second Respondent are declared to be in contempt of the order granted by Prinsloo J under case number J 2890/13 on 26 August 2021.

2. The First Respondent and the Second Respondent are to appear before this Court on Friday, 8 October 2021 at 10h00 or so soon thereafter as the matter might be heard, to show cause why an order as follows should not be granted against the First Respondent and the Second Respondent:-

2.1 Each of the First Respondent and the Second Respondent are incarcerated for such period as determined by the Honourable Court.

2.2 Alternatively, to 2,1 above, that a fine be imposed upon each of the First Respondent and the Second Respondent in such amounts as to be determined by the Honourable Court.

2.3 The First Respondent and the Second Respondent are to pay the costs of the applicant on the attorney and client scale.

3. Each of the First Respondent and the Second Respondent are to serve and file an answering affidavit by no later than 10h00 on Tuesday, 5 October 2021.

[2] As at 5 October 2021, no answering affidavit had been filed and served, nor did the First and Second Respondents make an appearance on 8 October 2021. Mr. Hollander for the applicant on the hearing date submitted that the First and Second Respondents have shown utter disdain for this Court and its orders, and had implored the Court to impose the severest of sanctions.

[3] I fully agree that the First and Second Respondents have not only shown utter contempt for this Court and its orders, but have also done so in the most brazen manner which is unprecedented in this Court. It has repeatedly been stated by Courts that contempt of court has implications for the effectiveness and legitimacy of the legal system and the judicial functioning. There is thus a public interest element in each and every case in which it is alleged that a party has wilfully and in bad faith ignored or otherwise failed to comply with a court order, which further adds to the need for the matter to be treated with urgency[1].

[4] The following background to these contempt proceedings demonstrates the insidious manner with which the First and Second Respondents have done everything in their power to ensure that the provisions of section 165(5) of the Constitution[2], which provides that; ‘An order or decision issued by a court binds all persons to whom and organs of State to which it applies’, are undermined. As shall be demonstrated below, the First Respondent (Dube), used to be a law enforcement officer, whilst the Second Respondent (Teffo), is an Advocate and thus an officer of the Court. At the barest of minimum, in those positions, more was expected of them to at least show some respect for the Court, its orders, and the rule of law. They deliberately and shamelessly failed in that regard.

[5] As if Khampepe ADCJ in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others[3] had the facts of this case in mind, she could not have expressed it better when she stated that;

‘It is indeed the lofty and lonely work of the Judiciary, impervious to public commentary and political rhetoric, to uphold, protect and apply the Constitution and the law at any and all costs. The corollary duty borne by all members of South African society – lawyers, laypeople and politicians alike – is to respect and abide by the law, and court orders issued in terms of it, because unlike other arms of State, courts rely solely on the trust and confidence of the people to carry out their constitutionally mandated function’[4]

[6] The background to the contempt finding made by this Court against Dube and Teffo on 30 September 2021 is as follows;

6.1 Dube is a former Warrant Officer who was in the employ of SAPS since July 1998. He was dismissed in February 2010 on account of allegations of serious acts of misconduct. Teffo is as per the papers before the Court, a practicing Advocate.

6.2 Dube upon his dismissal subsequently referred a dispute to the Safety & Security Sectoral Bargaining Council (SSSBC), resulting in an arbitration award being issued in his favour in June 2012. He was granted retrospective reinstatement together with back-pay, and was to report for duty from July 2012.

6.3 SAPS subsequently launched an application to review and set aside the arbitration award under case number JR 2422/2012, together with an application for condonation for its late filing.

6.4 Notwithstanding the review application, which remains unopposed, Dube in September 2012 brought an application under case number

J 2316/2012 to have the arbitration award made an order of Court in terms of the provisions of section 158(1)(c) of the Labour

Relations Act[5] (LRA), which the SAPS had opposed. Dube subsequently withdrew that application.

6.5 Having withdrawn the section 158(1)(c) of the LRA application, Dube brought a similar application under case number J 2890/2013 (the present case number). The SAPS did not oppose that application as its contention

was that it belaboured under the impression that the second application was the same as the first one which was withdrawn.

6.6 Dube had obtained a default order under case number J 2890/2013 before Basson J on 13 February 2014. The SAPS then brought an application for rescission of that default order in April 2014, which Dube

had opposed.

6.7 In November 2014, Dube then launched ex parte contempt proceedings against SAPS and its officials. On 5 December 2014, the Court granted the order, calling upon the then Minister of Police and then National Commissioner to appear in Court on 6 March 2015, to show cause why a contempt finding should not be made against them for failing to comply with the arbitration award issued in June 2012 which was subsequently made an order of Court.

6.8 The SAPS subsequently brought an application to stay the contempt proceedings pending the rescission application in respect of the default order obtained on 13 February 2014. The order was granted on 6 March 2015.

6.9 Dube has further obtained a variation of the arbitration award from the SSSBC in September 2017, in regards to the quantification of the amounts awarded to him in June 2012. At the same time, he also

launched an application in terms of Rule 11 of the Rules of this Court to have the rescission application dismissed. Dube again in September 2017 obtained a writ of execution.

6.10 On 26 October 2017, the Court ordered that the initial Rule 11 application be removed from the unopposed roll, to be enrolled together with the rescission application on the opposed roll as both matters had become opposed.

6.11 Based on the writ of execution obtained in September 2017, the SAPS had in February 2018 brought an urgent application seeking the stay of that writ pending the determination of the rescission application which was granted on 22 February 2018.

6.12 The rescission application together with its application for condonation came before the Court and were granted on 5 September 2018, thus effectively rescinding the default order of 13 February 2014

in terms of which the arbitration award was made an order of Court.

6.13 Dube sought leave to appeal against the order of the Court granted on 6 March 2015 in terms of which his application for contempt was stayed pending the outcome of the rescission application. That application remained dormant. A further application for leave to appeal was brought by Dube in regard to the order granted on 5 September 2018. The same fate befell it as it remains dormant.

6.14 Despite all of the above orders, Dube in November 2020 obtained yet another writ of execution. The Sheriff, Lenasia, sought to effect attachment on 14 December 2020. In January 2021, Dube brought an application in terms of Paragraph 16 of the Practice Manual of this Court to have the SAPS’ review application archived.

6.15 The attachment was subsequently released by the Sheriff on 19 February 2021. The Sheriff however on 11 August 2021 advised the SAPS of its intention to proceed with an attachment flowing from the writ obtained in November 2020.

6.16 In the light of all the threats and intentions to proceed with attachment on the part of Dube, the SAPS launched an application and obtained an order before Prinsloo J on 26 August 2021. It is this order that is the subject of the contempt proceedings.

6.17 In terms of Prinsloo J’s order, the writ of execution dated 5 November 2020 was set aside; Dube and Teffo, were interdicted from issuing, or causing to be issued and enforcing, or causing to be enforced, any writ of execution in respect of the arbitration award dated 11 June 2012, absent certification of the arbitration award in terms of section 143 of the LRA, or the award being made an order of Court in terms of section 158(1)(c) of the LRA.

6.18 It is significant to point out that despite the urgent application that came before Prinsloo J having been properly and timeously served, Dube and Teffo failed to either file answering papers or to make an appearance. Instead, Dube and Teffo brought an application seeking the recusal of Prinsloo J, and further contesting the locus standi of the SAPS’ attorneys of record (Larry Dave Attorneys (LDA)).

6.19 Both written objections (or applications) are dated 19 and 25 August 2021 respectively. The application for recusal is purportedly signed by Teffo, whilst the objection related to locus standi of LDA is purportedly signed by ‘Tlomatsane Attorneys’, who were purportedly the instructing attorneys. It is not clear whether these attorneys remain Teffo’s instructing attorneys.

6.20 Copies of both ‘applications’ are part of the record and it is not necessary to state the contents thereof, other than to point out that in contesting its locus standi and authority to act on behalf of the SAPS, LDA is accused of a variety of misdemeanours, including unethical conduct, fraud, corruption, and defeating the ends of justice. In the same ‘application’, the Sheriff, who was also copied (together with the Minister of Police, the Chairperson of the Portfolio Committee on Police, and the President of the Republic), ‘is directed and instructed’ to continue with the attachment and removal of SAPS’ movable goods.

6.21 Prinsloo J in the ‘application for recusal’ was not spared scurrilous and spurious allegations of impropriety. It appears that she is scandalously attacked by Teffo, simply because prior to her elevation to the bench, as counsel, she happened to have been an opponent of Teffo in matters involving SAPS, and at the time when he was a POPCRU shop steward representing members of the SAPS.

6.22 Worst still however, most of Judges of this Court who happened to have presided over matters involving Teffo previously were equally not spared in the application for Prinsloo J’s recusal, as they her accused of inter alia, being ‘captured by the Office of the State Attorney’. Senior members of the SAPS seen to be reluctant to comply with the arbitration award were not spared of vituperative allegations of impropriety either.

6.23 Of further significant however is that in the ‘recusal application’, Teffo specifically indicated that he and Dube would not form part of the hearing scheduled for 26 August 2021 before Prinsloo J. Indeed there was no appearance despite email links being sent to them as the hearing was to be conducted virtually.

6.24 Ordinarily, any practising legal practitioner would have known that where such applications and objections were made before a Court, a party raising them would have made an appearance before the Court and made its case. This was however not to be the case in this matter, and these objections were filed and served without more.

6.25 Upon the Prinsloo J’s order having been served on Teffo, Dube and Tlomatsane Attorneys, Teffo had on 7 September 2021, filed a founding affidavit in support of what appears to be an ‘application for rescission’ of Prinsloo J’s order.

6.26 What followed next was correspondence sent to the Sheriff titled; ‘Fraudulent Court Order Case No J2890/2013’. The essence of that correspondence was that the SAPS, together with LDA and Prinsloo J facilitated a ‘fraudulent court order, which was obtained under circumstances where both Dube and Teffo had elected not to oppose the urgent application nor to attend its hearing on 26 August 2021. In the same correspondence, the Sheriff was directed and instructed to effect attachment and removal of the SAPS’ vehicles at Eldorado Park Police Station. The Sheriff was further advised that if he was in doubt, he must confirm the status of LDA with both the Minister of Police and the National Commissioner. For good measure, the Sheriff was also in that correspondence, furnished with the details of the mobile phone numbers of both the National Commissioner and the Minister.

[7] The SAPS contends that by purporting to instruct the Sheriff, Dube, as legally represented by Teffo, are attempting to enforce or cause to be enforced, a writ of execution in respect of the arbitration award, absent the certification of the award or an application in terms of section 158(1)(c) of the LRA, contrary to the order granted by Prinsloo J on 26 August 2021.

[8] Despite correspondence from LDA advising the Sheriff of Prinsloo J’s order, and that the conduct of Dube and Teffo in seeking attachment and removal constituted contempt, Teffo’s sent further correspondence to the Sheriff, informing him that he was paid by Dube, and was therefore instructed to proceed with the removal, failing which he would be reported to the ‘Board of Sheriff’.

[9] The intimidatory, inflammatory, demeaning and racist tone and language used by Teffo in the correspondence to the Sheriff cannot be dignified by being repeated in this judgment. The correspondence remains part of the record, and one can only express horror and disbelief that such language can be used by a practicing Advocate and officer of this or any other Court. Of further significance however, is that Teffo and Dube are clearly intent on disobeying Prinsloo J’s order, and the Sheriff is being pressurised to effect removal of SAPS’ property.

[10] The principles applicable in contempt proceedings were recently restated in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others as flows;

‘[37] As set out by the Supreme Court of Appeal in Fakie, and approved by this Court in Pheko II, it is trite that an applicant who alleges contempt of court must establish that (a) an order was granted against the alleged contemnor; (b) the alleged contemnor was served with the order or had knowledge of it; and (c) the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed, and the respondent bears an evidentiary

burden to establish a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established.’

(Citations omitted)

[11] Flowing from the background as outlined above, there is no doubt that the Court order granted by Prinsloo J on 26 August 2021 was immediately served on Dube, Teffo and Tlomatsane Attorneys. There is further no doubt that they are aware of the Court order, have knowledge of its contents, and fully aware of what is expected of them.

[12] There is further no doubt that wilfulness and mala fides have been established. This is borne out by the ‘applications’ for recusal and rescission, combined with various correspondence to the Sheriff

advising it of the ‘Fraudulent Court Order’ and instructing and directing him to proceed with the removal of SAPS’ property. These demonstrates that both Dube and Teffo are not only intent on disregarding Prinsloo J’s order, but also seek to ensure through intimidatory and inflammatory means, that the writ of execution, which has been set aside, should be executed. Worst still, Dube and Teffo have rebuffed any opportunity granted to them to discharge any evidentiary burden to establish a reasonable doubt, by refusing to oppose the applications before Court let alone make an appearance to state their case.

[13] The wilfulness and mala fides is further evident from the fact that upon the contempt finding having been made on 30 September 2021, again copies of the Court order were served on Dube and Teffo. The opportunities afforded to both Teffo and Dube to explain their conduct and to at the very least redeem themselves were equally rebuffed. Instead, Dube continued to file further papers in regards to the rescission application which the SAPS has opposed. Effectively, Teffo and Dube continue to conduct themselves as if the orders of this Court issued on 26 August 2021 and 30 September 2021 do not exist.

[14] Until the contempt finding was made on 30 September 2021, and upon the order being served, it could not have been expected that Teffo’s conduct could get more egregious than it already was. The icing on the cake was to follow on 8 October 2021, before the hearing was to be held as per the order of the Court dated 30 September 2021.

[15] Ms Gretchen Anker, an attorney with LDA, out of courtesy attempted to telephonically contact Teffo with a view of reminding him of the hearing to be held virtually. Teffo’s response as per Anker’s affidavit which forms part of the record, was instead shockingly crude and dehumanising even by his lowest standards, as referred to her as a ‘Fucking bitch’. From this response, it is apparent that ethical and professional conduct, which is expected of officers of a Court, and which further calls for integrity, fairness, respect, and the avoidance of behaviour which is insulting and demeaning, clearly escaped Teffo, or at worst, he is not as a practitioner, aware of these basics.

[16] From the egregious contempt of Prinsloo J’s orders, the only issue that remains is what sanction should be imposed on both Dube and Teffo. Mr Hollander for the SAPS sought the most punitive sanction in the light of the utter disdain shown by both. From the background set out above, it is apparent that their continued disdain for orders risks further denigration of the Court’s authority to carry out its constitutionally mandated functions.

[17] It is trite that Court orders cannot simply be ignored with impunity simply because litigants are aggrieved by them. It cannot be that litigants and legal representatives routinely approach this Court and obtain favourable orders which they promptly seek enforce, yet at the same time adopt a recalcitrant, disdainful and defiant posture when adverse orders are granted against them.

[18] It was long stated in Pheko v Ekurhuleni City[6] that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery, and that the effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. Thus, clearly the conduct of Teffo and Dube needs to be addressed as a matter of urgency, in order not only to vindicate this Court’s authority and the rule of law, but also to ensure that both understand the importance of complying with court orders, and to take the appropriate and legally

recognisable steps when they are aggrieved with such orders, without resorting to what effectively amounts to hooliganism.

[19] The intended appropriate sanction ought to be determined within the context of Teffo and Dube’s conduct, which evinced mala fides and an unequivocal intention not to comply with the order in question. To recap, the impugned conduct was accompanied by scurrilous and defamatory attacks against Prinsloo J, the SAPS and LDA. The particular verbal abuse and dehumanisation of Ms Anker when all she intended was courtesy to a fellow practitioner is not only heinous and inexcusable in the extreme and I intend to address it in my order to follow.

[20] The attacks on Prinsloo J and other Judges of this Court in the so called ‘recusal application’ simply because they happen to have presided over matters involving Teffo in the past were equally malicious and unwarranted. These attacks are worrisome coming from a practitioner, as they impugn the reputation, dignity and integrity of not only this Court but its Judges.

[21] It has repeatedly been stated that Judges are not immune from criticism. However such criticism must be fair and be supported by facts. Litigants cannot simply vent their frustrations with scurrilous attacks on Judges simply because their orders are not what litigants expected. It cannot be correct that Judges remain easy prey and an immediate source of past-time venting of anger and object of insults. It is in this respect that I invite Teffo and Dube to substantiate their allegations that Judges of this Court are either corrupt or ‘captured by the SAPS’, and to do so by following proper channels including but not limited to those provided in the Judicial Services Commission Act[7]. If they are incapable of doing that, then they should cease and desist from attacking Judges of this Court, unless of course such

criticism has become a hobby for them.

[22] In the end, two essential options are available to the Court to demonstrate its displeasure at the disdain that Teffo and Dube has shown towards its orders. In fact, the draft orders submitted on behalf of SAPS envisage both coercive and punitive orders. A coercive order gives Teffo and Dube an opportunity to avoid imprisonment by complying with Prinsloo J’s order and desisting from the offensive conduct. It is my view however that even if this type of order was to be considered, given the conduct of both as already outlined and their clear resolve to disobey Prinsloo J’s order, it is doubted that on its own, such an order will yield the desired result. The purpose with such orders is to vindicate the authority of the court that has been disobeyed. It is therefore in that regard that such an order is to be granted, it should be reinforced by a punitive order that involves a sentence of imprisonment, should contumacy on the part of Teffo and Dube be evident should the coercive order to be imposed not yield the desired results.

[23] In conclusion, a further consideration relates to a costs order which was granted on 30 September 2021. Such a punitive cost order should be confirmed having had regard to what the requirements of law and fairness dictates as envisaged in section 162 of the LRA. The appalling conduct of both Teffo and Dube has been outlined throughout this judgment. Both have behaved in the most reprehensible manner in not only disobeying an order of this Court but also compelling SAPS in having to approach the Court yet again, in circumstances where both have steadfastly refused to recognise the authority of this Court and its orders. Clearly a punitive costs order is appropriate in such circumstances. This is particularly so since they were warned to desist from haranguing and intimidating the Sheriff to execute an order which had been set aside already, failing which this Court would be approached on an urgent basis. Both had nonetheless ignored the warnings, and the consequences must therefore follow.

[24] Accordingly, the following order is made;

Order:

1. The First and Second Respondents are found to be in contempt of the order issued by the Honourable Prinsloo J on 26 August 2021 under Case Number J 2890/2013.

2. A fine is imposed upon each of the First and Second Respondents in the amount of R50 000.00 payable at the office of the Registrar of this Court by not later than 15h00 on Friday 22 October 2021.

3. The First and Second Respondents are sentenced to Three Months imprisonment in the event of the fine mentioned above not being paid timeously, fully or at all.

4. The Applicant shall bear the responsibility of ascertaining whether order (2) above has been complied with.

5. In the event of non-compliance, Members of the South African Police Service (SAPS) are authorised and directed to arrest and detain the First and Second Respondents wherever they may be found in order to give effect to paragraph (3) as above, and for them to be kept at a facility nominated by the SAPS at its discretion.

6. The First and Second Respondents are further sentenced to three months’ imprisonment, wholly suspended for three years, on condition that they are not again found to be in contempt of the order granted by Prinsloo J as mentioned above, and during the period of the suspension.

7. The Registrar of this Court is directed to forward a copy of this judgment to the Legal Practice Council, to investigate the conduct of the Second Respondent in relation to this matter. Particular regard in the assessment of such conduct should be had to;

7.1 The Second Applicant’s ‘Application for recusal of Prinsloo J’ dated 25 August 2021;

7.2 The Second Respondent correspondence of 9 September 2021 addressed to the Office of the Sheriff, Lenasia (Attention Mr OB Khumalo), and titled ‘FRAUDULENT COURT ORDER NO J 2890/2013’.

7.3 The ‘Affidavit in Re: Telephone call with Adv MD Teffo’ as deposed to by Ms Gretchen Anker, an attorney with Larry Dave Attorneys Inc

8. The First and Second Respondents are ordered to pay the costs of the Applicant, jointly and severally, the one paying the other to be absolved, on an attorney and client scale.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: L

Hollander, instructed by Larry Dave Attorneys INC

For the 1st & 2nd Respondents: No appearance

[1] Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19; [2004] 3 All SA 623 (SE) at para 5

[2] The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

[3] (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC)

[4] At para 1

[5] Act 66 of 1995, as amended

[6] [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II); See also Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 8, where it was held; ‘…And while the litigant seeking enforcement has a manifest private interest in securing compliance, the court grants enforcement also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law.’

[6] [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II); See also Fakie NO v CCII Systems (Pty) Ltd (653/04) [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 8, where it was held;

‘…And while the litigant seeking enforcement has a manifest private interest in securing compliance, the court grants enforcement also because of the broader public interest in obedience to its orders, since disregard sullies the authority of the courts and detracts from the rule of law.’

[7] Act 9 of 1994